Montgomery v. Louisiana: An Oral Argument With “A Lot of Moving Parts”

On October 13, 2015, I attended the oral argument in Montgomery v. Louisiana. In Montgomery, the petitioner, Henry Montgomery, asks the U.S. Supreme Court to require the Louisiana Supreme Court to apply retroactively a recent juvenile-justice decision, Miller v. Alabama, 132 S. Ct. 2455 (2012), in a state-court collateral review of Montgomery’s life-without-parole sentence. In Miller, the Court held that juveniles could not be sentenced to mandatory life without the possibility of parole—i.e., a mandatory sentence without the trier of fact’s consideration of mitigating factors, including the age and characteristics of youthful offenders, such as impetuousness, immaturity, and the potential for rehabilitation. To be sure, Miller did not prohibit a life-without-parole sentence for juvenile offenders; it instead required courts to consider youth as a mitigating factor.

Enter Henry Montgomery. Since 1963, Mr. Montgomery has been locked away, serving most of his time at the Louisiana State Penitentiary—more commonly known as “Angola.” Mr. Montgomery murdered a white Baton Rouge police officer one week after he turned 17. Originally, a jury sentenced Mr. Montgomery to death, but the Louisiana Supreme Court overturned the conviction due to community prejudice. At his retrial, Mr. Montgomery was again convicted, but received a life-without-parole sentence. He has served over 50 years behind bars.

Let’s put this into perspective. At the time Mr. Montgomery committed his heinous crime, Billboard magazine’s number one song was “Sugar Shack” by Jimmy Gilmer and the Fireballs. The Fugitive—TV show, not movie—had just premiered on ABC. There had never been a Super Bowl—the first one would not take place until January 15, 1967. Mr. Montgomery has been locked away—and his victim dead—since roughly the same time as President John F. Kennedy’s assassination.

Judging from oral argument, however, the Court was preoccupied by esoteric legal arguments—whether the Court has jurisdiction to decide the legitimacy of the Louisiana Supreme Court’s refusal to apply Miller retroactively in a collateral review of Montgomery’s long-final conviction. Lost, to a great degree, was the reality that the Court was being asked to apply one of its own juvenile-justice decisions to a 50+ year “guest” of the State of Louisiana—a man who was sentenced under a mandatory sentencing scheme that the Court has since concluded violates the U.S. Constitution.

I’m not blaming the Court. The Court is limited, of course, to considering only those cases and controversies within its constitutional authority. So, all will understand that the jurisdiction question required the Court’s attention at oral argument—even though jurisdiction consumed a majority of the argument time.

Except for the Court-appointed amicus, whom the Court had directed to argue against jurisdiction, the parties and the United States argued that the Court did, indeed, have jurisdiction. Much of the jurisdiction argument turned on the Louisiana Supreme Court’s voluntary application of Teague v. Lane’s two collateral review exceptions—which I discuss in my Argument Preview. In short, Teague holds that retroactivity of a new constitutional standard or rule on federal collateral review is barred unless the case articulates a new substantive rule or a new “watershed” procedural rule. When the Louisiana Supreme Court denied Mr. Montgomery’s Motion to Correct an Illegal Sentence, it cited and applied Teague—and only Teague.

Critically important here, the Court has yet to require States to apply Teague’s analytical framework in their retroactivity determinations. Therefore, the Louisiana Supreme Court’s voluntary choice to apply Teague in this case led Mr. Montgomery, the State of Louisiana, and the United States to declare that jurisdiction to review the Louisiana Supreme Court’s decision existed in the Court—because the Louisiana Supreme Court had chosen to interpret and apply only federal law. Some of the Justices questioned whether the parties were reading too much into the Louisiana Supreme Court’s application of Teague. If the Louisiana Supreme Court is not bound to apply Teague, then—as Justice Scalia questioned—couldn’t the state court simply reverse field, apply a state law-based retroactivity analysis in lieu of Teague, and make the U.S. Supreme Court “look foolish”? And, the Court-appointed amicus furthered the debate, stating that while the Court has “jurisdiction to answer the question whether Teague is constitutionally required in State collateral review courts,” the proper remedy here was federal habeas relief (rather than the collateral review in state court that Petitioner Montgomery was seeking).

It was clear that some of the Justices believed the Court had jurisdiction to consider the legitimacy of the state court’s retroactivity analysis. Justice Breyer’s questioning to the Court-appointed amicus on this issue was especially pointed. Justice Breyer clearly believed that the Court was not limited to deciding the case under the Teague framework. He suggested that imprisoning a person without a basis under the law violates due process—a point that obviously trumps Teague’s “new”-rule versus “old”-rule analytical gymnastics.

As for the merits of applying Miller retroactively, the issue boils down to whether Miller announced either a new substantive or a new “watershed” procedural rule. Petitioner Montgomery and the United States both argued that the first of Teague’s two exceptions applied here because Miller articulated a new substantive rule. Miller went “far beyond merely regulating the procedure by which youths are sentenced for homicide crimes” by compelling “the State to adopt new substantive sentencing options, an option that is less severe than life without parole.”

The State of Louisiana disagreed, arguing that Miller did not forbid the imposition of a life-without-parole sentence on a juvenile offender. The penalty still exists, just as it existed before Miller. Rather than being a new substantive rule, the State argued that Miller was simply a procedural rule—i.e., that post-Miller juries must now consider the inherent vices of youth changed nothing more than the manner—the procedure—by which a jury might (or might not) arrive at a life-without-parole sentence. Therefore, the State argued that the second Teague exception governed the retroactivity determination in Petitioner Montgomery’s case. Analyzing retroactivity under the second of Teague’s exceptions would almost certainly be outcome determinative in Petitioner Montgomery’s case, however. As Justice Ginsburg pointed out, no procedural rule had been found to be “watershed” since Gideon v. Wainwright (right to counsel).

In conclusion, perhaps my seat neighbor at the oral argument said it best when he remarked that the Montgomery argument had “a lot of moving parts.” Each of the attorneys made strong arguments in support of their positions; but to some degree appeared to argue past one another. Now, the case is submitted and it is up to the Court to put this jurisdiction/retroactivity jigsaw puzzle together…and determine whether Henry Montgomery should be given an opportunity to show that he has rehabilitated himself and served adequate time following the 1963 murder of police officer Charles Hunt.

This post was originally published atHamilton and Griffin on Rights.